In a recent piece, Public Knowledge’s Anjali Bhat compared two proposed international solutions to the mounting public concern over the access of the visually impaired and/or disabled to copyrighted works. While it is easy to agree that the visually impaired should have access to copyrighted works in a format from which they can perceive and enjoy them, deciding the best method of accomplishing that goal is actually incredibly complicated.

As Ms. Bhat notes, there are currently two international proposals on the table.  One has been proposed by Brazil, Ecuador, Mexico and Paraguay, and another has been proposed by the United States of America. Ms. Bhat concludes in her piece that the United States proposal “falls short of what the visually disabled deserve.”

The four county proposal, however, appears to take a position that is weighted to far in favor of the visually disabled, which is not surprising given that the World Blind Union () is a strong force pushing its adoption. This is not to say that the visually disabled do not deserve access to copyrighted works, but copyright holders also deserve to be compensated for the use of their works and should be encouraged to create works accessible to the visually disabled themselves.

There are a few elements that appear to go beyond the immediate needs of the visually disabled. First, unlike United States law, which restricts its copyright exception to nonprofits and governmental agencies primary focused on providing these kinds of adapted works, the proposal, on the other hand, is not so restricted. The proposal allows, in addition to traditional uses that do not require remuneration, uses that are made by for-profit corporations, without licensing by the copyright holder.

Second, although the proposal is written and has been marketed as being directed at the visually disabled, it also contains the following clause that extends the treaty

to persons with any other disability who, due to that disability, need an accessible format of a type that could be made under [the proposal] in order to access a copyright work to substantially the same degree as a person without a disability.

Third, under the proposal, authorized users are allowed to make works available in any format that gives a disabled person access to a work. This means that an authorized user could create an audio version for a visually impaired person, even though creating such a work would likely impact the market for “books on tape.”

Finally, the proposal permits authorized users to circumvent DMCA type technological protections in their attempts to create works for the visually disabled.

These measures seem to go beyond the immediate needs of the visually disabled, and instead create a bevy of new rights for those who create such works or at least claim to. Two of these rights are particularly concerning. First, if the treaty is extended to other disabilities, what will qualify? Certainly it is hard to argue with visual or auditory disabilities, but what about other disabilities. Who gets to decide what is in and what is out.

Second, who gets to decide what is a reasonable format for a work to be created in? As mentioned above, is creating an audio version of a book an acceptable format? It certainly helps the visually disabled access books to the same degree as a person without the disability, but there is already a market for audio books. Allowing authorized users to create their own versions without paying licensing fees may discourage that market.

This is not to say that having copyright exceptions on the books for the visually disabled is a bad thing; it’s hard to argue against such a thing. It is, however, important to tailor the exceptions so that copyright holders are still encouraged to create the copyrighted works in the first place.

Finally, Ms. Bhat was fairly concerned in her piece about countries’ lack of explicit exceptions for the visually impaired. However, some countries handle exceptions under other doctrines. In the United States, for example, a number of things for which other countries have formal exemptions are handled under the fair use doctrine. In the United States, we don’t have an explicit right to quotation, but I don’t think anyone would argue that quoting (actually quoting, not taking the whole piece) from a work would be objectionable. Creating explicit exceptions to things, on the other hand, tends to completely define the scope of those exceptions. So things that one might have argued were fair uses, are completely removed from that analysis. It’s a policy question whether that’s a good thing or not.

Copyright, Intellectual Property, International